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LJlllintitf, tllllll Hdt.iHl'yitl<) thll minimum c:ontllct:ll tOI:l!: of
thl;' United Lll:iltlll:l COIHit Ltutiun.
V.IJ/le
31 Venue ia proper for thll:l action pUrHUllnt to pa.R.C.p.
No. 1006 the cause of action arUllC and/or the
trana6ctions took plllce out of which this cause of
/lction arol:le, in Cumberland County, l'llnnl:lylvania.
'uu..
41 Plaintiff/ Capital r"lcuvery Associates, Inr;:, ("CH/\"l,
is a Pennsylvania corporation with Lts principal place
of ~usiness located at 324 Market Street, Lemoyne,
Cumberland County, l'ennHylvania.
5l Plaintiff il:l ongaged in the business of collections,
primarily collecting personal checks that were
diahonorlld by the individual check~writera' financ:lal
insUtut iOIlS,
6) Pllfendant FLoyd l3ybee is an attorney who ia domiciled
in ArLzona dnd practLcoR law in Arizona at 3910 South
Rural Road, Suite 13-1, Tempe, Arizona, and ia a partner
with BybeH & "haw,
7l Pefend/.lnt Mlc.:hilel Shaw ill an attorney who L'l domkl,lod
in Arlzonll ,Hid pt'"et. \c'lR law In Ar I zonil oIt It} 10 1l<1l11 h
..
Ilural Hoad, ~ulte ll-l, 'I'ompa, Ari:Z'ltld, dnd I./l a pilrtnar
with llyboo ~ ~huw,
fi.uzllJ, .. AlJ..".UQIJ.
0) On March 13, 1'1'16, PotU/ldillltu tlont CIlA il domand
letter tor on() 01 l)ol'H1danl.ll' ,: II ntH.tl, ~hlnry,
threatening to SilO CIlA fur un ullu<Jad vl.(llatlon of
the f'air LJebt Cullo,:\:lon l'rilctkotl Act ("f'LJCPA").
(Exhibit A)
9) LJefendants' el ilml., I:lhorry, h,ld a lle'JEldly written an
NSf chack (non-suff i cient funds) check to CIlA's client.
10) on Marcil lU, 1996, LJefandanttl tlent CHA ilnother latter
regarding the terms of iI settlement with Sharry,
(f:xhibit 13)
11) On March 25, 1996, CIl/I Bant a $500.00 check to BybeE! ~
Shaw in an attempt to tlett1e tha catle with Sherry.
(f;xhibit C)
12) On AprIl 'I, 1996, IJefendantl:l sant a facsimIle to CI~A
demandl.ng money for another of theLr clLents, Ililey,
tor alleged violal.lontl of the lfDCPA. (ExhibLt [1)
13) Defendilnttl' ell.ent, IU ley, had d Ile'ledly wr.\.tten IIn
NSf' check (non-suftl.ci,;!tjl' funds) check to CIlA'1l clLent.
14) On or about AprLl 19, Carl Durd, General Manaqer uf CIlA
(hereinafter "llurd") l.elephonod Ilofondilnt :Jh,lW
reqardin<j t:hu allo<jiltlonH ,Iqillnst. CHA.
.
.
15) Burd and Defendant Shaw agreed that CMA would pay
$2700.00 for both claims, Sherry and Miley,
16) Burd and Defendant Shaw agreed that Defendant Shaw
would return to eRA, the first installment of $500.00,
as described in Paragraphs 9) and 10) above, un-cashed,
and CRA would send another chock for the total
settlement amount to Defendant Shaw.
17l On May 9, 19%, CRA sent a check tor $2700 for
the Sherry/Riley settlement. (Exhibit E)
18) On May 9, 1996, CRA sent d letter to Defendants,
memorializing the SherrY/Riley settlement and
requesting the 1,l500.00 be retll/:n<1d. (Exhibit If)
19) On June 3, 1996, Defendants sent a letter to CRA
acknowledging the receipt of the settlement money from
CRA along with copies of the releases for both cases.
(Exhibit G)
20) On June 3, 1996, Defendants sent a letter to Mark
Bradshaw, out-sido counsel for CRA, regarding a new
alleged claim against CRA undor the "DePA, for another
of Defendants' clients named Pollard. (Exhibit HI
21) Pefendant's client, Pollard, had allegedly written an
NSF (non-SUfficient funds) check to CRA's client,
.
. .
221 Defendants Gilllhed ilnd retid lied thll ~OOO. 00 pilyment
from the Shan.y tlot.l.l"'mont, dOllpltq /JcknoWludgincj
receipt of tllll Ildtltlt<lctlun combLnldd nherry/Hlley
sattl13mont. .
23) Defendants cashed Bnd retuined t.ho $500.00 Ln
anticipation of futuro sett.iementtl bOCillli>O they planned
to continue thelie actions agdintlt CRA.
241 'rhe JUne 3, 1996, iolt.er from Shaw to AtloY."l1aY Bradshaw
stated that, "1 am already in receipt of $500.00
towards the amount," (~~~ 8xhibit H.)
25) Defendants elected to retain the $500.00 over-payment
for the Sherry/Riloy Bettlement, before any alleged new
claims were made known to CRA.
26) PlaintIU conlilcted tlhaw Mid requested the $500.00
payment be returned to CRA,
27) Defendants improperly retained $500.00 and were
unjustly enriched by this act.
28 I Defendants breached the settlement ag reement wi th
eRA for SherrY/Riley by improperly retaining additional
consideration that was not part of the settlement
agreement.
29) Defendants breached the settiement agreement with eRA
for the new alleged claim, Pollard, because thuy
improperly retained Lhe $500,00.
.
30) Defendanta Knowingly made a falae atatement regarding
the ~liOO. 00 Lla part. of .m onCjolng Ilchumo to defrllud CI~A
of money.
31) On or !ll:lout July 2(j, 19'16, Ur~fllndant flhaw contacted one
of eRA's major cliunta in order to damage CRA'a
business reputation.
32) Defendant Shaw told thia CI~A client thllt CI~A waa
conducting buailltla:$ in thu state/:! of Arizona ilnd
Connecticut and Was not properly "licensed" in these
States, in order to damage CRA's business reputation.
33) Defendant Shaw's repreaentllUon to CI~^, s client was
falso as CRA was not conducting business in the States
of Arizona and Connecticut.
34) Defendants knew that any prior CRA activity within the
state of Arizona was accidental and acknowlodged same
on several occasions.
35) Plaintiff believes and has knowledge that Defendants'
primary practice is illegally and wrongfUlly making
demands for payment or maliciously filing law suits
against individuals and entities that collect on
worthless/bad checks.
36) Plaintiff believes and has knowledge that Uefendants
file suits and threaten legal action for the purpoBo of
shielding their clients from crimindl and clvll
liabil iL y.
.
371 Plaintiff believes and has knowledge that Defendants'
prilctices dnd prQ~:udur~s ilro unot:hJcill and .Llleqill and
have boen purpetratod on num<lrous Individuals and
enti tios throu<Jhout: tho lJn Itod Ptatus.
30) Defendants, In thoir lot tors Ilnd phone call/I, allege
that Plalntltf vlolatod tho FDCPA lor not PIilJng
"licensed" In Arizona, and this tactic .La part of
Defendants' Ilchomo to dofraud and 1.0 /look monios from
Plaintiff through unconscionable and illegal means.
39) Defendants ilnd tholr cllontll hav(! no standing to sue
under Arizona law for Iltate licensing violations.
40) Plaintiff bulloves and hall knowledge that Defendants
clients have never paid for their worthless/bad checks
and never intended to pay for their worthless/bad
checks.
41) Defendants intend to practice this schemo to defraud
upon Plaintiff by throilteninq to file or by filing a
law suits against Plaintiff in an attempt to extort
monies from Plaintiff, to cause interference with
Plaintiff's busJnoss and to caURO Injury and damage to
Plaintiff's buulnoRs reputation by willfully and
maliciously pub! lahlnq dofamatory statoments.
42) On or before July 10, 1996, Plaintiff received a call
from Matthew Naydon ("Naydon"), ,lll:orney for :It,wy
Allen ("AJ.l<m"); Mil, Allot! Willi CHA's former In-hollHl!
cOlina.) 1,
.
43) Nayden into~/IIud Plaintiff, through ita counael, that
Allen received iI phone call Uufendant Show, demanding
~I,500.00 tu aettle an alluqecJ ~"PCl'/\ violation.
44l Pl'llntitf, thr<>llqll j tH cllllnaol, Infonned Nayden thllt
eR/\ would not settle any alleqod clailll/:l with
De fendanta,
45) On July 30/1996/ Dofendant Shaw sent a demand letter to
/\lIen, thr.ough her cOllnso!, (f:xhlbit r)
46l Nayden, /\llen's counsel, again contacted CRA and sent a
facsimile copy of the demand letter from Uefendants.
47) Nayden, /\llen's counsel, was again adviRed that CRA
would not settle any alloqud claims with Defendants.
48l On September 5, 1996, Defendant Shaw filed a l,qw suit
against CI<Aand /\11en,
49) The Septumber 5,1996 lawsuit against CR/\ and Allen was
dismissed, sua sponte by the judge, on September 6,
1996, (8xhibit J)
50l As of this date, Defendants have not returned the
$500,00 as requested,
51l On or about Decembor 11, 1996, Defendants contacted
Larry Rosen, an attorney that also represents CR/\, and
demanded $1,500,00 t.o SflttlO an al1ec]od l"IlCP/\ claim,
52) As of this date, Uefend,Jnts havo continuod thol r
practice of demanding monC1Y from eRA or Cll/\
representatives under tho IIHliHIH dOBcrlbod horeln,
,!..,...
'..
QQIUlLL=.J'Io".wlAlUt..QQDGU.Q3-JQ_.D1t#Io"GtJ
53) J?laintiff hereby incorporates r>araqraphs 1 through 52
as if fully set forth horoin.
54) Defendants misreprosented their right to retain the
~500.()0 payment,
55l Defendants misrepresented that the allegations and
demands for manoy wore valid legal claims.
56) Defendants knew or should have known that writing a
worthless check is a tortious activity pursuant to
Arizona Statute, A.R.B. SI2-67l,
57) Under Arizona Statutes, A.R.B.. S12-67l(C), failure
within 12 days after receiving notice of nonpayment or
dishonor to pay the check or draft is prima facie
evidence of intent to defraud.
56) PefendBnts knew or should have known that Writing a
worthless check is a criminal act under Arizona
Statute, A.R.S. SI3-L607, 13-1602.
59) Defendants and their cUents had no standing to sue
under Arizona law for state licensing violations.
60) Defendants acknowledged that CRA's activity within the
state of Arizona was accidental, thereby giving them a
viable defense for alleged FDCJ?A vioLations/claims.
61) Defendants knew that defending a lawsuit in Arizona
would be both costly and time consuming to eRA,
regardless ot the results.
62) Defendanttl made thotlo mitlrepretlentations with the
intent of induclnq Plaintiff lntu mailing money to
Defendants on behalf of Detendanttl' clients.
63) Plaintiff jUtltifiably relied on thetlG
misrepresentatluna which did mislead and deceive
Plaintiff to mail muney to Defendants,
64) Plaintiff negotiated Beveral settlement agreements for
alleged rDCPA violations batled on Defendants'
misrepresentations,
65) As II result of Defendants mitlropresentations, Plaintiff
has suatained damages in the amount of $5000.00,
representing actual monies paid to Defendants, plus
attorneys feea for out-side counsel to assist in the
negotiation process of approximately $200,00,
trbaa:afoa:a, Plaintiff demands judgment against
Defendants in the amount of $5200.00, plus appropriate
interest, attorney's foes and costs, and punitive damages in
an appropriate amount, Additiona Lly, Plaintiff requests
that Defendants be enjoined from this fraudulent practice
within the Commonwealth of Pennsylvania.
"Qui-IV - lJfJt...UQIl_ tQ..".J.u......q:lJltUJ,QIl
75) l'lalnt Lff hereby incorporat.es Paragraphs I through 74
ill:! it tully :JeL forUI hOloln,
76) Defendants telophonod onu of Pl,lint itt' I:! major clients
and made det'illllatory slillllrnunl:3 rO<jilrdln<j CHA ilnd their
business prilctices.
77) Defendants caused to bo published defamilt.ory statements
such aSl
a. that, Plaintiff has caused harrn or damage to
Defendants' clientsl
b. that, Plaintiff has attemptod to collect. monies
from Defendilnts' clients in an attempt to deceive
Defendant:;' client.sl when in fact, theso U1DunC.
wwre legally owwd to Pl.inti~~'a oliantal
c. that, Pl.aintiff has violated certain laws and
statutes governing t.he collection of worthless
check:l.
79) Such statements made by Defendants were false and made
with the intent. t.o injure Plaintiff's business
reputation or for t.he purpose of oppressing Plaintiff
into paying monios for act:J that Plaintiff did not
participate In or commit.
79) Defendantll' acts of dofamation were committed
knowingly, willfully, wron<jfully and maliciously, nnd
without le<)111 'justlflcatinn or ox,:use.
"
OOl As a result of DefandHnts' publication at such
detaillatC/ry IltatO/llfdntS, L'lllint1t:f hilS pIlon injlll:'lld .In
the.lr good name, businasll interest, and reputation in
the puainl'lsll c:fJ/lullunity in lit) dmount not yot
ascertainable, but which .la bal.lovod to be in excess of
$25,000.00.
Wharefor., Plaintiff demands judgment i1gainst
Defendilnta in tho dmount of $25,000.00 and punitive damages
of $250,000.00, or an amount as this Honorable Court deems
appropriate, plus attorney's foes and costs. Additionally,
Plaintiff requests that Defendants be enjoined from this
practice within the Commonwoalth of PcHlnHylvdnia,
C.oW1.LV-=--.lI1C.I1UQu.L.tW;.~z.I1Q.~IIJ.J;b
CQI1CZAQcud.BaJ.ACJ.QU
011 Plaintiff hereby incorporates Paragraphs l through 00
as it fully set torth horein.
82l Pefendants knowl.r,gly, wl.ll tully, wrongfully,
maliciously, and wl.thout. l<l<jdl jusUtLcation or excuse,
interfered with Plaintift and l.ts client.
83l Defllndant/l havo and r;ont t nU'it to CaUBlJ harm by makl.n'l
misstatements, throiltonl.nq or filing lawsuits, ilnd by
commlttlng ot.her iJeLIl wi Lh tho direct purpose to
diacradi t ~)lilintj ft and wi tll th'l purpose of interfarinq
with Pl,lint.lff'lI roliIU,)n/lhlp wltll ltll cli'ltlt,
841 All il rEHlult: ot l)uf'lndilntu' IntLlIIllllt),lI l.ntltrterenc:e
with p~illntlff'/l Cl)ntld.~l.\ldl l'Iiolll')II/I, Pl.lIntitf hila
bean twrl1\od i.n Iln ill1\llllnt not yet illlcurtillnilplu, but
Which ill belillVlld to bu jn UXI~'.!1l1I III ~~;!b,OOO.OO.
WbaZ'atoZ'a, Piilint iff del1\dndll jlldCjlllunt dCjillnat
Defendants in t11(1 <lIllOllllt of $:)~j,OOll.Oll ilnd punitivo dalllages
of $250,000.00, or an a/llllunt ,Ill thIIl 1I0norable Court deems
appropriat.o, piu:; i1ttOrJILly'H to'HI and costll. Additionally,
Plaintiff requests that Defondants be enjoined frol1\ this
practice within the Com/llonwoalth lIf Ponnsyivilnia.
CDun~ VL_~.~r_Bu.~Q..._Rx>~g..
851 Plaintiff hereby incorporates ParaCjraphs 1 through 84
as if fully set forth horoin.
86) Defendants' conduct as described herein constitutes
unfair or deceptive businestl ilctS or practi.ces within
the meaninCj of the Unfilir Trade Practices and Consumer
Protection Law, ("lJTP"), .,) P. S. ii20 i-i, lJ.L.ll.e.q~
871 As iI result of Defendantu' unconucionable acts and
practices, ilnd Defendilnt,,' vl.oi.ltion of the lJ'l'P,
Plaintiff i.a entitiod to recOVer up to three tl.moa l.ta
actual damiJCjflll, ,lll cluthorlzed by "/3 I'.S. S20l-l),;'(ol),
m. ,.." I~nr:," 11/1
IUll..UJJAW
MJclI^~', l~, HII^~
flMU W, UUn.
J91lJ Sl)Jrl'll MUllAI. t(I)AU. HIII'I'I': n.l. 'n:MI'~;1 AMI".UNA .SU2
n.:...:PIIV~~: frJfl m~m
March 13, 1996
SENT VIA '~C8IMILB TOI l7J7) 730-7~
MID BY REGULAR HA1J"
Mr. Edward Maxwell
C~A SECU~ITY SYSTEMS
P.O. Box 625
LeMoyne, PA 17043
~el Kimberly Sherry
Your ~efl 02311692-01N
PQar Mr. Maxwell I
Please be advised that I have been retained by the above
captioned individual regarding a dunning letter that she has
reoeived in Arizona from CRA Security Systems ("C~A") concerning a
debt allegedly owed Walgreens. I am enolosing a copy of the
dunning notice dated Pecember 13, 1995, received and read by M~.
Sherry, for your convenience. At present, it is my client's
intention to file a lawsuit against CRA unless resolution of her
claims is reaohed.
CltA has violated several provisions of the Fair Debt
Collection Praotices Act, 15 V.S.C. 51692 ~~. and applicable
Arizona state law in its attempt to collect this alleged debt from
Ms. Sherry.
First and foremost, eRA was not licensed by the Arizona State
Banking Pepartment to oollect debts within the state of Arizona.
As a member of the American Colleotore Association, you are no
doubt aware that Arizona is a closed border state, and as such, All
colleotion agencies must be licensed to collect debts h~re pursuant
to A.~.S. 532-1024. Despite that knowledge, CltA has oontinued to
dun Ms. Sherry J<nowing she was residing in Arizona. ~urthermore,
the majority of oourts that have examined the issue have held that
violations of applicable state law conetitute violations of 15
U.S.C. 51692e(10). (See fll.b.ley v. Firstcollect, IIIC., WL 782171
(M.D.La 1995), Gaetano v. payoo of Wisoonsin. Inc., 774 F.Supp.
1404 (D.Conn. 1990), and Kuhn v. Account Control Technology. Inc.,
865 F.SUpP. 1443 (b.Nev. 1994).
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'W1c3~ 1996
U~1 ~.r. ONL\'1(717) ~.7-tOt9
Mr Mark ~rWh&w
CJlA SECUJUTV SY5T1MS
'0 Bo1l625
Lell\oyne, P A 17043
~II Tem 1) PaIWd
Dear Mark
PUrlllIII1Lll QW telephone cqnverut!on 'lfFriday, May 31, 199ti, -- pl.eue 8nd. copy
of the Rei... ellCCUted by Ma PoU..d on behalf of eM Se.:;urity SyataIlI. lnIl ThlI letter will
",JIl\rm that Ma Pollard and eRA have ~ to lIdtle thla matter lbr paymelll orSI,200,00, 11/1\
lIl,wly In receipt ofS5oo,00 IQwardl the JIIllOlllll II I. my undenWldlna the /'CIIllIlnlIlS 5700 00 will be
paid III S350 00 lnatallmenll due JllIle 30, 1996 and July 3\, 1996 upon I1lCCIIpt of the I1l1al WalIilment
paymenl, I wlII forwllld 10 YllU lhe orllPnalllelcase
If lilY of the above 15 I'IOt 10 your 11I\derll1111Ul1ns. please let me know lmmcdialcly
Apln, t/lIIIk you for you profualonal oourtca1a In rClll)lvlna thI. maner In a prompt III1d
equltab\e fuhlOIl
Sincerely,
BYBEE & SHAW
/r/l~J (/ cj
Ml.;hul C Shaw,l\a.q
MeSic!
~, dlenl
JI~.I1I'-1996 1'31 '3(,
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\-t 1',02
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~'O$OIITHflljJIIL~, I~nll"', TfI,tlIl, ~m-
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Iuly 30, .996
Manh.w Nayden. Esq
aber, Kaler
120 E Baltimore Slreet
lJaltimore, MD 212Q2
Re. lOMph W, Dr.per
Your cl: Staey Allen
Pe.u Mr Nayden.
AI per our telephone d!laIl1ioll. please be Idvlud lbal I haVIt been rllllned by !he above
referenced irtdlvjdual CIlllall'l\lll8 . dllllninl1ener he received torn SIalJy L. All,", EIl1., reaard1rta I
debl aII..edIy owed Wa\lIJlttl\S I am encloMs . copy I)f wiener, received llIId'read by Mr, Draper,
for your \lOnvenlen~ A1 preunt. ~I ia my c:I1ent'l U1senQolI 10 Ill. a Ilw aWl qaInat Ms, Allen. eM
Secwlty SYSlIIIII, lnc llIId Wa\lIJoens, WIleN rno\U1ioll orhia ~1aIma 11 reached.
Mf AIIen'llllUer ..11110 Mr Crap.. violalud the fair DIbt CoUection Pr.cdca Act, 15
use SIl'C 1692 111111I. and appUcebl. ~ollllltlle law in ..vera! r.spectl.
fint, Ma ~Irt'a cl1enl, CRA Sealrity Sylterns lnc, remain& unllllCl\lld WIthin the ltate of
Arizona. 10 colIlCl debtl here Therefor., If C It A, hu no power or authority 10 collacl the aII'l'd
debl owed WallIJIIlIII. obvlolllly nalther CII\ Ms Allen. ThuI,lb.lllter violatedllS92. (5) and (10)
Second, the latter COIIIIInJ nwneroua Ihreata reprdlna UalptiOIt over the N S F check Since
Ma Allen ~I nol Ucensed to practlce law in Arizona, 1ha IhreIII Wert tilae MorIover, - CItA 11 not
Urenaed by me Arizona Sw. BankiIIa Depar1mtIU to coUect debta here, Ma, Allen could have liken no
actlon. lncludilla the 9161951,"er, on ill behaIC \..UlIy, in conducdns my rtllOnable invntlplioll oflhe
facta, purlNlllllIO FJl,CP, RuI. II, It 11 my belief that Wa\aJecnIlllVer authorized lepllntervtntlon on
bthI1f of M.I Allen Bued on the Ibove, I beUevl Ms, Allel\, In f&ct, did I\I)t even mall thia letter.
Rather, CM la mpolllibll for III contentland nWIInS
AUG-06-1996 1~IJ5
EKhibl1 ^
,1l1il?2'?l36:'
P.02
e:~hl'~I'+ J:
~, 9(. .l/:;/7
IN TH~ UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
OAPXTOu RIOOVlRY ASSOOXATIS
XNO.,
OXVXU AOTXON NO. 1IOV-97-646
PldnUU
v.
FILED
HARFIISBURG, PA
JUl 1 1991
.Y.II . SHAW, ruOYD BY..., and
NXOHAllL SHAW,
Ddendant.
MAFI~!1'tr~E'\' GI.':~"'1l
Per ~t-~ .---
(1) Defendants' motion
o R D III R
Before the court are two motions I
to dismiss for lack of personal jurisdiction, or, in the
alternative, to transfer venue, and (2) Plaintiff's motion to
remand, For the reasons stated below, the court will grant
Plaintiff's motion to rElmand and deny Defendante' motion as moot.
Prior to commsncing the p~esent action, Plaintiff
initiated an almost identical case in the cumberland County Court
of Common Pleas, The amount in controversy alleged in that case
exceeded the amount in controversy requirement of $75,000, On
F~bruary 5, 1997, Defendants removed the prior case to this court
and filed a motion to dismiss for lack of personal jurisdiction,
or alternatively, to transfer venue. The case was doclteted as
Civil Action No. lICV-97-190, Plaintiff never responded to
Defendant's 010" '.on but voluntarily discontinued 97-190 without
preJudice on Feoruary 19, 19~'
Plaintiff subsequently filed the presl!nt action in the
Court of Common Plp
Defendants l.'emoved tqe 'fla"'~'I,t;~ ,t!"q,~,',GlfUrt
I. '7-1' <=)7
},J,. f. __ .,_
21.' ,., Clork
por)Z-Y.J.c.d2 .
U'6pllty Clorl(
on April 24/ 1997/ simultaneously filin~ a motion to dismiss for
personal jurisdiction, or, in the alternative, to transfer venue,
Plaintiff responded to Defendants' motion on May 12/ 1997 and
filed a motion to remand to the state court, In its motion to
remand, Plaintiff argues that the amount in controversy does not
exceed the jurisdictional amount requirement of $75/000.1
Plaintiff also oontends that Defendants have not served notice of
removal upon the prothonotary of the Cun~erland Court of Common
Pleas and have not, therefore, effectuated removal of the instant
case,
Defendants have not responded to Plaintiff/s motion to
remand, nor have they filed a reply brief in support of their own
motion. Defendants/ response to Plaintiff/s motion was due May
27/ 1997,2 On or about June 5/ 1997/ the court received a
telephone call from Defendant Shaw, Defendant Shaw represented to
the law clerk assigned to this case that he had not responded to
Plaintiff/s motion to remand because the documents he received
contained the caption number of the previously dismissed action,
Civil No. 1ICY-97-180, Defendant Shaw was informed that the
l Plaintiff mistakenly identifies the requisite jurisdictional
amount as $50/000, The amount in controversy requirement was recently
amended and effective January 17/ 1997 changed to $75/000,
2 The Middle District Local Rul~s provide that a nonmovant
has fifteen days after service of the movant's brief to respond,
(M,D. Pa, R, 7,6), Federal Rule of Civil Procedure 6(e) adds three
days when service is accomplished by mail. Federal Rule 6(a) excludes
from computation the day on which the movant filed its motion.
2
motion had been correctly docketed in Civil No, 1ICV-97-646, The
law clerk recommended to Shaw that he contact Plaintiff's counsel,
explain his mistaJ<e, attempt to obtain additional time within
whioh to reepond, and then communicate with the court,
On or about June 12, 1997, the court received a copy of
a letter addrelJsed to Shaw from Plaintiff's counsel, indicating
that he would not agree to grant shaw any additional time within
which to respond to Plaintiff's motion to remand. Shaw has not
oommunicated with the cOllrt in any manner. dnce his telephone oall
to chambers.
A review of the complaint reveal~ an allegation of an
amount in controversy of approximately $34,0000, an amount well
below the $75,000 jurisdictional amount requirement. Plaintiff's
complaint differs primarily from the complaint filed in Civil
Action No. 1ICV-97-1BO in its omission of Plaintiff's prior claim
for punitive damages in the amount of $500,000, and in its
reduction of the amount of damages claimed for defamation of
business reputation and intentional interference with contractual
relations, "As the plaintiff is considered to be 'the master of
his or her own claim,' he may insulate a case from removal by
waiving a portion of his damages and asking for less than the
jurisdictional amount," Corwin Jeeo Sales. v. A.merican Motor
Sales, 670 F.Supp., 596 (M.D, fa. 1966) (Rambo, J,) (QlIotinS/ 14A
Wright, Miller & Cooper, Federal Practice and Procedure,S 3702 at
3
:l:l), Plaintiff has done precisely that in the instant elISe- -it
has dropped its claim for punitive damages, As a result, even if
Plaintiff had relllleged $25,000 in damages for both its defamation
of business and intentional interferenoe with contraotual
relations clalms, the jurisdictional amount requirement would not
be met in this matter, Furthermore, due to Defendants' failure to
respond or seek an extension of time within which to oppose the
motion, the court deems Defendante to have waived their opposltion
to Plaintiff's motion to remand,
Accordingly, IT IS KIRISY
ORDIRID THAT.
(1) Plaintiff's motion to remand is QRANTID.
(2) Defendants' motion to dismiss is DINIED as moot.
( 3) The Clerk of Court is directed to transfer the Hie
to the Prothonotary for the cumberland County Court of Common
Pleas and close the file,
't,
VIA H. RAMBO, Chief Judge
ddle District of Pennsylvania
Dated I July ,
, 1997.
4
llrocllodings
1,97ov64l5
4/').4/97 1
4/24/9'7 2
4/24/97 3
4/7.5/97
5/1/97 4
5/12/97 5
5/12/97
5/12/97 7
5/12/97 8
5/27/97 9
5/27/97 10
. .
inaludo all events, TIERMED
capital Recovery Aaa v, Bybee & Shaw, et a1 HSG
RIEMAND
PIETI'rION rOH HEMOVl'IL from cumberland County Court, Calle
Number, 96-6917 civil Terml no jury trial demanded,
Receipt III 122747 Amtl $150,00 (jh) [Entry date 04/25/971
MOTION by defendants to dismiss for lack of personal
jurisdiction, or alternatively to transfer venue pursuant
to 28 USC 1404 (al and c of s, (jh) [Entry date 04/25/97]
PRAECIPE: by defendants to pltf notifying them that this
eotion has been transferred to our Court, (jh)
[Entry date 04/25/971
REMARl< - Copy of doc)<et sheet to Judge Rambo and Terry, (j h)
SCHEDULING CONFERENCE ORPER Case Management Confe):"ence set
fo):" 9100 a.m, on 6/5/9'7 (CCI Ct" all counsel) (vg)
[Entry date 05/02/97)
RESPONSE by plaintiff capital Recovery Associates Inc, to
defendants! Illotion to dismiss for lack of personal
juriSdiction, or alternatively, to transfer venue, (clt)
lEntry date 05/13/97J
6
MEMORANDUM by plaintiff Capital Recoverr Associatell
OPPOSITION to defendants motion to dism ss for lack
personal jurisdiction, or alternatively to transfer
pursuant to 28 USC 1404 (a), c/s, [2-1] ,reply brief
5/27/97 (altl [Entry date 05/13/97]
MOTION by plaintiff Capital Recovery Associates to remand
action to the Cumberland county Court of COlllmon Pleas with
exhibit attached and c/s, (clt) [Entry date 05/13/97J
IN
of
venue
due
MEMORANDUM by plaintiff Capital Recovery Associates, Ioc,
IN SUPPORT OF the motion to remand action to the Cumberland
County Court of Common Pleas. cis, [7-1] (clt)
[Entry date 05/13/97]
MOTION by plaintiff Capital Recovery Ass postpone calle
mgt, conE. set for 6/5 for 30 days after a ruling on the
mtns, to remand, dismiss and transfer venue, Unable to
reach opposing cnsl. for conc/non-conc. Propo. (js)
CERTIFICATE OF SERVICE by defendant Floyd Bybee that a copy
of the Notice of Removal has been sent to the Clerk of the
Court of Common Pleas. (tm)
Docket as of July 2, 1997 9147 am
Page 3